Unlawful Detainers

An unlawful detainer, commonly known as an “eviction lawsuit”, is a civil action where a property owner or manager can recover possession of a rental unit. Unlawful detainers are named for the “unlawful detainer statutes”, which are a comprehensive set of California statutes describing how a landlord can peaceably recover rental property without “self-help” (e.g., physically removing non-paying tenants or removing personal property at the end of a lease term and changing the locks), as this may result in conflict and liability.

An “eviction” is actually the process of a sheriff enforcing a superior court judgment (via a “writ of possession” issued by the court), removing any occupants in the property and restoring possession to the landlord. There are, actually, multiple ways to obtain a judgment for possession from the superior court. The unique thing about an “unlawful detainer action” specifically is that, unlike other civil actions, it proceeds on a five-day summons instead of a thirty-day summons. A summons is essentially an order from the court to appear and submit to its jurisdiction, and the unlawful detainer five-day summons not only orders a tenant’s appearance sooner, but also sets the pace for the entire “summary proceeding”.

For instance, unlawful detainer discovery is due within five days (instead of thirty), trial is set upon twenty days of a request (instead of based on the particular court’s case management resources), and a motion for summary judgment – usually set out 75 days from filing in a regular civil action – can be heard on as little as five days’ notice (much to the chagrin of landlord-tenant attorneys who have learned not to be too attached to their nights and weekends).

This fast pace has some interesting implications. For instance, for several decades, courts would consider challenges to service of a summons by evaluating the merits of the lawsuit itself. In general, a defendant who thinks they have not been properly served with a summons can make a “special appearance” to challenge the plaintiff’s claim of proper service. Usually, this motion is only about whether the process server’s efforts complied with procedural law on service of the summons.

However, because the unlawful detainer action is the only civil lawsuit that can proceed on a five-day summons, a defendant could argue that the complaint did not “state a cause of action for unlawful detainer” using declaration testimony and other evidence, and, if they were right, the court would dismiss the entire action instead of simply “quashing” the service of the summons. (That practice may have ended in 2015 with decision Borsuk v. Appellate Division. For now, that decision leaves the decision up to trial courts, and the San Francisco Housing Court has been denying these motions.)

Further, because only unlawful detainer complaints can proceed on the five-day summons, this also means that the landlord can assert no other claims (like damages for breach of contract) and the tenant cannot bring any counter-claims against their landlord, like those arising from retaliation or habitability defects. (Tenants can use these claims defensively, but they must be cautious because a full and fair opportunity to litigate them (as a defense) can prevent subsequent actions to recover money damages on the same theories.)

The unlawful detainer action is merely a state procedure for a particular kind of lawsuit, and it provides five different ways to get into court: (1) end of lease term, (2) non-payment of rent, (3) breach of lease, (4) waste/nuisance, and (5) providing notice of their termination of their tenancy and then failing to vacate on time. However, many cities have enacted rent-control/eviction-control ordinances that require “just cause” to evict.

Residential Rent and Eviction Control Resources

Justin A. Goodman, Esq.415.956.8100

Costa-Hawkins.com is a product of Justin A. Goodman, esq. of Zacks, Freedman & Patterson, P.C., in San Francisco, California. This site is not intended to provide legal advice. It is not affiliated with any government agency.